Which in turn suggests that the fuss about Hillary Clinton's private mail server was well founded.

This also would not be a story if the DNC and Podesta emails had not had juicy details that held them up for justified criticism and ridicule. Using Bernie Sanders religion against him. DNC Chair Wasserman Schultz collaborating with Clinton against Sanders. Clinton lawyers collaborating with DNC against Sanders. Flippant remarks about donors. Collusion with media sympathizers. DNC efforts to hurt Tim Canova's primary campaign against Wasserman Schultz. Pages from those Wall Street speeches Hillary refused to release. Podesta communicating with liberal Catholics and -non-Catholics about changing Church teaching and criticizing conservative Catholics. Debate questions leaked by Donna Brazile to Clinton.

In sum, there is very little new news here. Which makes the timing of these news stories trumping up the facts (pun intended) quite suspicious. Admittedly, I dote on conspiracy theories, but it strikes me as entirely plausible--based in no small part on those DNC emails--that there is a campaign organized by Clinton die-hards and their media sympathizers to weaken and delegitimate PEOTUS Trump before he even takes office.

12/15/2014

I am going out on a limb to predict that the Delaware legislature will not proscribe fee-shifting bylaws, which will result in a considerable--but highly controversial--growth in the number of companies adopting such bylaws and considerable but largely unsuccessful pushback from institutional investors. This will make the law review article I was hoping to write on the subject less interesting, so I hope I'm wrong.

We will continue to see substantial number of shareholder proposals relating to political contribution disclosure. They'll continue to mostly fail

We will not see very many, if any, repeats of the acquirer-hedge fund tag team model pioneered by Valeant and Ackman.

Despite the additional attention it will receive, enterprise risk management will continue to lag at most firms.

Public pension funds will face increased pressure to adopt more plausible discount rates, but little progress will be made in this key area.

Republicans in Congress will pass--and President Obama will sign--legislation that repeals funding the Consumer Financial Protection Bureau through the Federal Reserve and make CFPB funding part of the normal appropriation process.

Congressional Republicans will pass legislation converting the CFPB from a one-person directorship to a bipartisan 5-member SEC-like commission. If Obama signs it (and I think he would if it was part of a package of stuff he wants), Elizabeth Warren will run for President in 2016.

Republicans will be unable to derail the SEC rulemaking on CEO-worker pay ratio disclosure.

The NACD will come to its senses and restore yours truly to my rightful place on the corporate governance top 100 list.

1. Never Use the Loaded “Gadfly” Term – It’s politically incorrect to call someone a “gadfly.” Trust me, it is. ...

And your point would be what? If the shoe fits, etc.... Political correctness is lame.

2. Gilbert Brothers Brought Rule 14a-8 to Life ....

Apropos of Broc's point # 1, here was the headline for John Gilbert's obituary: John J. Gilbert Is Dead at 88; Gadfly at Corporate Meetings. If gadfly is good enough for the Grey Lady, it's good enough for me. Anyway, the obit went on to say of his persistent questioning of CEOs that "not a few of whom considered it badgering." In 1982 alone, these busybodies submitted 198 shareholder proposals to companies. In 1991, they submitted a whopping 75 out of 319 proposals. (Data from this paper.) What I can't find is data on how many of these proposals passed. My guess is zero. In any event, that's not governance. It's a fraking obsession. See Douglas M. Branson, Corporate Social Responsibility Redux, 76 Tul. L. Rev. 1207, 1215 (2002) ("in those years the shareholder proxy proposal area was a territory occupied by corporate gadflies, such as the Gilbert brothers and Evelyn Davis. Critics pointed out that most proposals were motivated more by narcissism than by any heartfelt concern about improved governance or social responsibility"); D. A. Jeremy Telman, Is the Quest for Corporate Responsibility A Wild Goose Chase? The Story of Lovenheim v. Iroquois Brands, Ltd., 44 Akron L. Rev. 479, 487 (2011) ("There arose in the 1940s the phenomenon of the “gadfly investor.” Three such investors, Lewis and John Gilbert and Evelyn Davis, still accounted for 30% of the resolutions submitted to corporations as late as 1982. Their prominence among proponents led to cries that the process was being abused by people who were not interested in the economic well-being of the corporation but by people promoting 'crackpot' ideas or 'afflicted with an insatiate desire for personal publicity.'").

3. Most Individual Proponents Don’t Like Being Grouped Together – John Gilbert hated being lumped together with EYD in media articles. They didn’t act in concert.

And your point would be what? I'm sure Iraq, Iran, and North Korea didn't like being lumped together as the axis of evil.

4. Remarkable That Anyone Bought EYD’s “Highlights & Lowlights” – It’s amazing to me that any company would cave to what is essentially blackmail and buyEvelyn Davis’ “Highlights & Lowlights” – which essentially was a publication about herself. But it was a smart investment for anyone that didn’t want EYD to cause trouble at the annual meeting.

EYD was running a racket not unlike the Sōkaiya in Japan: Blackmailing "companies by threatening to publicly humiliate companies and their management, usually in their annual meeting." Today, of course, its union pension funds that abuse the 14a-8 shareholder proposal to extract private gains at the expense of their fellow shareholders. But 14a-8 is still an enabler of racketeers.

Speaking of Evelyn Davis, here's a few more facts: "Until rather recently, people like Johnny Carson,96 Dr. Spock,97 and others of their ilk were nominated from the floor of the annual meeting by the Evelyn Davises of the world." Thomas J. Andre, Jr., The Corporate Governance Reform Act of 1995, 17 J. Corp. L. 87, 101 (1991). "Mrs. Davis stated at the 1972 annual meeting ‘I'm opposed and against women directors and women officers. I'd much rather deal anytime with the worse men than the friendliest woman.’" Leila N. Sadat-Keeling, The 1983 Amendments to Shareholder Proposal Rule 14a-8: A Retreat from Corporate Democracy?, 59 Tul. L. Rev. 161, 197 n.112 (1984).

5. What Is a “Successful” Shareholder Proposal? – Davidoff presumes that a shareholder proposal is successful only if it receives majority support from shareholders. But I define it much differently. For the proponent who brought the proposal, the definition of success may vary. They merely might want to force the board to consider the issue of the proposal. They actually might want to use a proposal to gain attention so they can obtain a meeting to discuss a more pressing issue (for which they don’t want to publicly disclose).

Does Broc really want to celebrate the use of Rule 14a-8 for disingenuous private purposes? Or to celebrate forcing companies to spend money - i.e., to coerce speech - to give some asinine gladfly a soapbox? Even a proponent of board-shareholder engagement admits that "there is a lot of anecdotal evidence suggesting that often the few people who attend annual meetings do so in order to be disruptive. These anecdotes support the notion that shareholder meetings have become, in one expert's words, a '[t]heater of the [a]bsurd.'" Lisa M. Fairfax, Mandating Board-Shareholder Engagement?, 2013 U. Ill. L. Rev. 821, 837 (2013).

I say repeal 14a-8 and let them send out tweets.

6. Most Recent Court Cases Have Resulted in Losses for Companies

Which is sort of the point. The law is too favorable for shareholder proponents.

7. $87 Grand for No-Action Requests? Call My Lawyer – The gist of the Davidoff article is that shareholder proposals are costing companies so much money. Of course, that depends on whether a company decides to seek no-action relief from Corp Fin to exclude them. Davidoff throws out that it costs companies $87,000 per proposal for “dealing with them.”

Sorry, but we really are talking about serious money here. As far back as 2001, Roberta Romano tolds us that "the estimated present value of the cost of the current regime ... ranges between $293 million and $1.9 billion." Less Is More: Making Institutional Activism A Valuable Mechanism of Corporate Governance, 18 Yale J. on Reg. 174, 182 (2001). See also Alan R. Palmiter, The Shareholder Proposal Rule: A Failed Experiment in Merit Regulation, 45 Ala. L. Rev. 879, 926 n.15 (1994) (citing Susan Leibler's well-known study "using reported costs of shareholder proposals in 1976 and 1981 to estimate that shareholder proposals, both included and excluded, during 1975-1976 proxy season cost U.S. companies a total of $7 million").

8. No-Action Process Ripe for Reform? – Anyways, if the real beef is cost – why not go to the heart of the matter and reduce the costs inherent in the no-action process?

I actually agree with the need for no action letter reform, but that doesn't change the fact that we also need Rule 14a-8 reform.

9. Do Institutional Investors Support Proposals From Individual Proponents? – It appears that Davidoff didn’t bother to talk to any institutional investors to ask their opinion about individual proponents. If he did, I can tell you that most would support the right of these shareholders to submit proposals (in fact, EYD was known to pick topics that would receive wide support on purpose). And that institutions have supported their proposals many times over the years

Broc's probably right that union and state/local government pension funds support expansive Rule 14a-8 rights. After all, they're big abusers of the rule too. I'm not convinced that mutual funds and so on would be so supportive.

10. Shouldn’t the Topic of the Proposal Matter, Not Who Submitted It? – Yep. Amen.

No. The identify of proponents matters a lot. We need to make it a lot harder for hobbyist gadflies like the Gilberts and private rent-seekers like union and state/local government pension funds to abuse the process.

08/20/2014

Over on Facebook, a friend who clearly is in denial about the fact that law school starts next week (he's another law prof), asked: "whom would you rank (in order) as the top 10 QBs in NFL history? and please explain if you are so inclined."

04/20/2013

The terrorists win if we allow these sort of events to push us further down the road towards being a police state.

Therefore calls for greater use of surveillance cameras are a bad idea. Big Brother should not be watching everywhere all the time.

Therefore treating an American citizen who committed a crime on US soil as an enemy combatant--as some misguided GOP lawmakers have urged--would have serious and adverse civil libery consequences.

Therefore Emily Bazelon was correct when she argued that "When the law gets bent out of shape for him, it’s easier to bend out of shape for the rest of us." The right to remain silent is one of the most precious legacies of the Anglo-American legal tradition. Dzhokhar Tsarnaev should be read his Miranda rights.

Therefore Glenn Greenwald was also right when he argued that the Obama administration has already gone too far in restricting "Miranda rights for terrorism suspects captured on US soil."

Every time we restrict civil liberties in these ways, we go one step further down the road towards using drones against US citizens on US soil. Rand Paul was right that we need to nip these trends in the bud.

The terrorists also win when we shut down an entire city to chase down one guy. The whole manhunt was a gross overreaction.

Social media and blogs behaved remarkably badly, fostering a with hunt mentality in which innocent people got their names, pictures, and addresses plastered across the web. The right side of the blogosphere was particularly awful this time, but it is a bipartisan failing.

Allowing the Boston bombing to derail immigration reform would be absurd. To the contrary, these guys were here legally. This incident simply has nothing to do with the issue of how we deal with economic migrants from countries to our south, which is the basic issue on illegal immigration.

You'll notice that amateurs with concealed carry guns did us no good. Allowing the bombing to derail reasonable efforts at gun control would be equally absurd.

03/21/2012

Let's take a break from corporate law et al., to focus on the hot stove league news. It's been a pretty amazing week for football fans.

Peyton Manning as a Bronco. Curious that he opted against the 49ers. With Manning, the Broncos are a lock to win 10-12 games and make the playoffs. With the 49ers, however, I'd have pegged Manning to win his second Super Bowl. The 49ers have a better defense and running game.

Tom Tebow traded to the NY Jets. WTF? How on earth are Tim Tebow and Coach Rex "Potty Mouth/Foot Licker" Ryan going to co-exist? And why? To be a Wildcat freak or to really compete for the starting job?

Can you imagine Tebowmania in New York? The first time Mark Sanchez makes a bad play (which will be sometime in the first drive of the first preseason game), the crowd will be howling for Tebow.

How long will it take the NY Post to start Timsanity headlines?

Stunned that Roger Goodell suspended Sean Payton for the entire 2012 season. I guess Roger decided that a fish rots from the head and that he had to send a message that the head coach is ultimately responsible for maintaining institutional control.

Reports say Payton will lose $8 million in pay. Hope he had a big rainy day fund put aside.

Surprised that Saints GM Mickey Loomis was not suspended immediately. GM does most of his work now, with draft and free agency. Suspending him for games during the season will have much less impact. Given that Loomis reportedly disobeyed a direct order to end the program, he has always appeared more culpable than Payton.

If New England had to lose a first round pick for Spygate, shouldn't the Saints have lost their 2013 first round pick?

I'd really hate to be a Saints fan right now.

After years of being a disgruntled Redskins fan, I publicly switched allegiances to the Packers last year. As usual, my timing sucked. It looks like the Redskins are finally getting their act together. RGIII is going to be a star. They've given him some great new weapons. The defense was already solid. Now if they can strengthen the O-line and running game, they'll be a solid playoff contender.

01/02/2012

So I finished in second place in the PB.com rotisserie league. I was well rewarded for taking MJD high. Drafting Rob Gronkowski in the late rounds turned out to be a strike of genius (okay, mostly luck). A mid-season trade for Matthew Stafford helped too. Just not quite enough firepower to make up the gap with the league leader.

I finished third in the PB.com H2H league. I got hammered by QB injuries towards the end of the season and wound up starting (Gawd help me) Matt Sanchez. Ray Rice deserved his first round selection. Drafting Jimmy Graham late was another stoke of genius (okay, mainly luck). If Miles Austin and Matt Schaub had been healthy all season and I had had a better RBs than DeAngelo Williams, I think I could have won this thing. Oh well.

Kudos, BTW, to Drew C who won both the OB.com leagues this year -- a first.

As for my teams in Charles' leagues, I don't want to talk about it.

Thoughts:

In 2012, we end the H2H fantasy season in Week 16. These week 17 games are just too unpredictable. Drew's 7-7 team beat Charles' 10-4 team mainly because Matthew Stafford and Calvin Johnson went nuts against a Packers defense missing Charles Woodson and Clay Matthews.

Aaron Rodgers is fantasy fold in roto leagues. I won the PB.com rotisserie league last year behind him (of course, having drafted Arian Foster in the 6th round helped). Drew C won the league this year behind Rodgers.

Drafting an injury-prone Javid Best as my RB2 in two leagues was a very bad idea.

Cam Newton is going to be what we thought Mike Vick was going to be. Only better and for much longer. He's a fantasy superstar in the making.

Desean Jackson was my biggest bust of the year. Considering how high I drafted him, I got woeful production.

Ditto Mike Vick. Having both of them on the same team was a very bad idea.

Cam Newton and Tim Tebow were great waiver wire pickups, even if they were picked up on my Charles' league teams that otherwise sucked. Newton will be on my radar for QB1 next year. Not convinced Tebow will be starting in 2012.

I loved it when David Akers tossed for a TD in week 17. It didn't change any of my results, but I love it when you get that little "extra points" asterisk on your Yahoo score sheet.

Having Vernon Davis as my TE on the same team that had Vick and Jasckson was one more reason that team sucked.

12/05/2011

The Unseen Academicals are 9-3 in the PB.com H2H fantasy football league, are in first place in their division, have clinched a playoff spot, and are in good shape to add a 10th win by the end of the night. Da Commish is in second place in the PB.com roto league, but continues to come on strong and is slowly closing the gap with the Roswell Oilers. The Cowboys Drool are 5-7 and thus in a three way tie for fourth place in the lamentably named Cowboys Rule H2H. Unfortunately, all three of us are almost certain locks to win this week, which means the tie for the final playoff spot remains unbroken. As for the LA Prawfs, they remain mired in seventh place in their rotisserie league. So I'm having a pretty decent but not stellar season.

I'm now convinced Tim Tebow has a viable future as an NFL starting quarterback. But what matters is what John Elway and, I suppose, John Fox think. It's hard to read what Elway says about Tebow and conclude that Elway is prepared to commit beyond the season to Tebow. In an ideal world, Elway would trade Tebow to a team that actually wants him and is prepared to utilize his skill set.

At this point, Cam Newton would get my vote for Offensive Rookie of the Year.

At this point, Aaron Rodgers would get my vote for Offensive Player of the Year.

Few things have made me happier than watching the Philadelphia Eagles flutter back to earth tis season.

I am increasingly doubtful that my beloved Washington Redskins will make the playoffs in what's left of my lifetime.

I hate Dan Snyder and all his works.

I feel really sorry for the Houston Texans. It's like watching an edifice crumble.

DirecTV's Sunday Ticket is probably the greatest invention since the internal combustion engine.

10/14/2011

I've been fighting a bad head cold and sore throat since Sunday night, which migrated to my chest yesterday. I think I'm finally on the mend, having thrown a veritable arsenal of remedies at it over the last few days. FWIW, here's my impression of their efficacy:

Hot and sour soup. Very good. Hydrates but also makes you sweat, which loosens up the mucus. Plus, it tastes really good at a time when your taste buds are subpar. Think of it as chicken soup on steroids.

Airborne. Highly dubious. But it tastes better than plain water and so at the very least it encourages hydration.

Vicks Vapo-rub. Brings back comforting childhood memories and does seem to loosen up the mucus.

10/02/2011

As a lifelong Redskins fan, I'll take any win, even over the hapless Rams

As a lifelong Redskins fan, my second favorite team is whoever is playing Dallas --- what a great game the Lions played today --- me so happy watching Romo collapse ... again --- I wonder how you say schadenfreude in Texan?

For the third time in four weeks, I left Cam newton on my bench in CT's rotisserie league. Never again. I am now a believer.

Rough weekend for me in fantasy football. Right now I'm behind in both H2H leagues and losing ground in both roto leagues.

I left a lot of points on the bench in the PB.com roto league by not starting Marshawn Lynch and James Starks. But who knew they'd both beat MJD and Javid Best?

I should have known that Frank Gore would blow up for a big game if I benched him. But I benched him anyway, starting Starks and Hightower. the latter got me a whopping 1.90 points in CT's stingy H2H league scoring system. Thanks to Vick and Calvin Johnson's big days, however, I could still squeak out a win if the Jets DST get some points and Dallas Clark doesn't get into double digits.

I need the Jets DST to do well if I'm going to win the two H2H leagues, but I've got Ray Rice on the Unseen Academicals (my PB.com H2H team). A big night for Ray would guarantee that I remain undefeated in that league, but could cost the Jets DST enough points that I lose in the other H2H league. The dilemma of fantasy football.

I can't believe Rob Ryan actually said that Calvin Johnson would be the third best wide receiver at today's game. What morons these Ryans are. I wonder of he's even smart enough to realize he's got some retracting to do.

Have I mentioned lately how much I hate the Dallas Cowboys, their owner, their players, their coaches, their alumni, employees, and fans?

Is it too early to start wallowing in schadenfreude watching the Eagles' "dream team" season go bye bye?

09/01/2011

In agreeing Wednesday to reschedule his planned address to a joint session of Congress, President Obama might have placated House Speaker John Boehner at the expense of the nation's football fans.

Boehner, R-Ohio, balked at the president's original request to appear before Congress to discuss the nation's chronic unemployment problem on Wednesday, Sept. 7. That's the same day as a Republican presidential debate in Simi Valley, Calif.

Obama agreed to move his speech to Thursday, Sept. 8, which happens to coincide with the opening game of the NFL regular season, a prime time contest between the New Orleans Saints and the defending Super Bowl champion Green Bay Packers from Lambeau Field.

FWIW, I think:

There are no coincidences in DC. Obama timed the speech to step on the GOP debate. He also wanted the Congress--especially the House GOP--as living props for what is really going to be a campaign speech. He's lucky they're even going to let him speak.

Boehner won. Again. Where's Obama's spine?

As a TV viewer, I'd prefer that he preempt the GOP debate than football.

It's a sad state of affairs when the fourth and final game of football's preseason is likely to make more compelling television than a POTUS debate.

I don't dislike any of the GOP contenders as much as I dislike the Dallas Cowboys, but it's close in some cases. As between Obama and the Cowboys, it's a coin flip.

Neither Super Bowl champs nor Presidents should come from Texas.

If asked to choose between Barak Obama, Jerry Jones, Al Davis, and Danny Snyder as leader of the free world, I'd be hard pressed to choose the lesser of the evils on offer.

I always thought it said something about Obama as a person that he prefers basketball to football.

Since I pick second in a 10 team PPR league this weekend, it would be helpful if Obama gave us an update on Adrian Foster's job status in his speech.

Obama says that he will “lay out a series of bipartisan proposals that the Congress can take immediately to continue to rebuild the American economy by strengthening small businesses, helping Americans get back to work, and putting more money in the paychecks of the Middle Class and working Americans, while still reducing our deficit and getting our fiscal house in order." After which, he and Congress will leap tall buildings in a single bound and run faster than a speeding bullet. How about a program of NOT doing stuff. Like not raising taxes, not flushing money down a stimulus rat hole, and not imposing new regulations that cost business money and create uncertainty? And if you must do something, how about repealing all the new laws and regulations Obama's created that cost business money and create uncertainty?

08/25/2011

It's that time of year again. School started. Days are getting shorter. And an old man's thoughts turn to things like average draft positions and mock drafts.

I'm currently in 4 fantasy football leagues this year. All more or less PPRs. Smaller leagues this year than I'm used to. One 8, two 10, and one 11 team leagues. I'm looking for an auction draft league. First draft this weekend.

I stand prepared to be corrected on any of the following (and it's just possible that I'm putting out disinformation to confuse the opposition), but here's 10 things I think I think (as always, apologies to the great Peter King):

The Chris Johnson holdout scares me. Not only could he miss time, but holdouts always seem vulnerable to injuries. Having said that, if he's available when I draft at # 7 in my 11 team league, I'd probably have to gamble.

The Peyton Manning situation seems to have everybody spooked. I saw him go in the sixth round of a mock draft the other night. In all my years of fantasy football, I've never seen him go lower than the third round. Frankly, however, I'm more worried about what his health might mean for Reggie Wayne and Dallas Clark. I'm bumping them down a bit.

How do you win an 8 team league when everybody's going to have studs at every position?

Antonio Gates' continuing feet and toe problems scare me.

I love the Washington Redskins, even though I expect them to finish last in their division ... yet again, but there's only one or two players on that team I might even consider drafting. And, no, John Beck isn't one of them. Oddly enough, however, the same thing's true of the Patriots, even though I like them to win their division and maybe the AFC.

I'm a big Josh Freeman fan, but he's got a much tougher schedule this year than last. It'll be interesting to see how he does. I'm inclined to let somebody else find out, however.

Which individual better epitomizes the red state--blue state divide in the US today? Barack Obama or Tim Tebow?

In one of my leagues, the scoring system is such that I'm going to wait to take a QB until pretty late. In another, however, I might go QB in the first round.

Every time I get excited about a possible sleeper, he gets dinged up.

I'm going to let somebody else find out if Peyton Hillis and Steve Johnson are one hit wonders. Given the chance, however, I'd be happy to find out whether ________ will be a one hit wonder.

I know the Dean and various other UCLA bigwigs read my blog sometimes, so I want to assure them that I only work on fantasy football at home, in the middle of the night, and after doing tons and tons of teaching, research, and service. I never tweak my pre-draft rankings during a faculty meeting, for example, or check the waiver wire before class. Honest.